Pro-marijuana campaigns violated election law without consequences

Some city election laws promising a fine or imprisonment for violators were made toothless by a 2010 federal court ruling.

Jul. 15, 2013

Fort Collins City Councilman Wade Troxell filed a campaign finance complaint regarding these signs, paid for by the registered statewide issue committee Campaign to Regulate Marijuana Like Alcohol, which urged yes votes on both the local and statewide marijuana questions on the November 2012 ballot. / Courtesy of Wade Troxell

The probe revealed that the city is powerless to require disclosure of the forces at work to influence the outcome of local elections.

“If the City pursues enforcement of the issue committee provisions of its code, it may expose itself to substantial challenge and possibly liability,” Scott Krob, the Greenwood Village lawyer hired to investigate the complaint, cautioned in his final report to the city.

He cited a 2010 federal appeals court ruling that found requiring small issue committees to report their activity is a violation of the First Amendment right to association. Some heralded the court’s decision as a coup for grassroots political movements. Others decried it as an avenue to affect the democratic process by shadowy means.

Fort Collins’ city code threatens violators of its campaign finance disclosure requirements with a misdemeanor punishable by fine or imprisonment. Krob recommended that the city amend its reporting requirement to align with the court ruling.

Fort Collins City Council has directed legal staff to develop and recommend updated campaign finance disclosure rules for issue committees, according to City Attorney Steve Roy. He refused to divulge how the recommendation might reconcile the constitutional obstacle course presented by the court ruling before it is presented to council.

City Councilman Wade Troxell filed a campaign finance complaint accusing pro-marijuana political committees Sensible Colorado and the Campaign to Regulate Marijuana Like Alcohol of violating municipal election codes by failing to register with the Fort Collins City Clerk’s Office as political committees during last year’s Question 301 campaign. Both organizations had registered with the state as issue committees.

The Campaign to Regulate Marijuana Like Alcohol spearheaded the Amendment 64 campaign to legalize recreational marijuana in Colorado, and Sensible Colorado has been active in campaigns to relax marijuana laws in the state since 2004.

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Troxell’s complaint targeted both organizations over their support for the Organization of Cannabis Professionals, an issue committee registered with the city in support of repealing Fort Collins’ ban on medical marijuana dispensaries.

The Campaign to Regulate Marijuana Like Alcohol supplied signs urging yes votes on Amendment 64 and Question 301. The Organization of Cannabis Professionals listed the $973.78 value of the signs among the donations it received in campaign finance reports to the city clerk. Sensible Colorado helped the Organization of Cannabis Professionals coordinate Fort Collins phone banks that called voters asking for support of the statewide and local ballot issues expanding access to legal marijuana. The phone bank effort is not reflected in city campaign finance records.

The basis of Troxell’s complaint was that neither the Campaign to Regulate Marijuana Like Alcohol nor Sensible Colorado registered with the city clerk as issue committees in order to report contributions and expenditures during the Question 301 campaign, as city election code requires.

The independent investigation commissioned by the city found that Troxell’s complaint was valid. The investigator stated in his report that because they did not disclose expenditures associated with the municipal election, probable cause exists that both the Campaign to Regulate Marijuana Like Alcohol and Sensible Colorado violated Fort Collins’ election code.

“Sensible Colorado acted in full compliance with all state and local laws,” he said. “Our minimal efforts on the Question 301 campaign were entirely volunteer actions and incurred no expense whatsoever. It is absurd that the investigator believes there is probable cause that the organization incurred expenses without any actual evidence of expenses incurred.”

Vicente said Sensible Colorado is versed in and has abided by state and local election laws during the numerous campaigns it has been involved with for almost a decade.

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“This is the first such complaint that has been brought against the organization in its nine-year existence,” Vicente said.

A review of complaints on file with the Colorado Secretary of State’s Office showed Sensible Colorado has not been the subject of any campaign finance complaints at the state level.

Troxell, an outspoken opponent of expanded availability of legal marijuana, along with his wife provided about $50 worth of in-kind support to the Vote Against 301 issue committee for mailers and copying expenses. When he filed the campaign finance complaint just before the election, some on the opposite side of the debate dismissed it as an expression of bitterness.

“I don’t know if I feel any vindication at all,” Troxell said. “All I tried to do was shine the light on what was happening. We do have issues in our local election laws. We limit local participation by allowing for other avenues of influence to come in from the outside.”

The Vote Against 301 committee supported by Troxell, Larimer County Sheriff Justin Smith (donor of $300) and others against reopening dispensaries spent $6,265 on the campaign.

Citizens for Safer Neighborhoods, bankrolled largely by dispensary owners seeking to repeal the ban that put them out of business and the United Food and Commercial Workers labor union in Colorado and Wyoming, spent $8,189.06. The Organization of Cannabis Professionals reported $1,014.28 in spending. The signs provided by the Committee to Regulate Marijuana Like Alcohol constituted all but $40.50 of it.

Based on the independent investigator’s ruling in his complaint, Troxell said the campaign spending numbers on file with the city clerk only tell part of the story of how Question 301 was won. But, he said, what’s done is done.

“When there is impropriety in an election, how do you overturn or change an election that’s happened?” Troxell said. “You don’t. You can’t. Right now, the only way you can deal with it is to shine a light on it and not control it too much. The remedies after it happens? I’m at a loss for that.”